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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:Discretion, 'nolle prosequi' and the 1992 Ghanaian Constitution
Author:Mensah, Kwadwo BoatengISNI
Periodical:Journal of African Law
Geographic term:Ghana
Subjects:criminal procedure
government attorneys
administrative law
External link:https://www.jstor.org/stable/27607955
Abstract:Section 54 of Ghana's Criminal Procedure Code, 1960 (Act 30), gives the Attorney-General discretion to enter a nolle prosequi in the course of a criminal trial. According to the orthodox view, this discretionary power is not subject to judicial review. The orthodox view raises a number of very important questions. First, is it really the case that the power to enter a nolle prosequi is not subject to judicial review? Secondly, if this is the case, how is the Attorney-General accountable for the manner in which he exercises his discretion and how is it possible to ensure that he acts fairly when he enters a nolle prosequi? This article challenges the orthodox theory and advocates a theory based on legal accountability. The proposed theory is founded on the view that accountability and fairness, which are central constituents of good governance, will be enhanced if the discretion to enter a nolle prosequi is subject to legal control. The paper goes on to show that the legal accountability theory is supported by article 296 of the 1992 Ghanaian Constitution and that it also conforms to practices found in other Commonwealth jurisdictions such as England, Canada, Fiji and Australia. Notes, ref., sum. (p. i). [Journal abstract]